CONTRACTING THE THIRTEENTH AMENDMENT:
HODGES v. UNITED STATES
PAMELA S. KARLAN*
INTRODUCTION ................................................................................................ 783
I.
“A GENERAL GRIEVANCE IN THIS STATE AND SECTION” .................... 785
A. The Prosecution ........................................................................... 785
B. Hodges Before the Supreme Court............................................... 790
HODGES AND THE WIDER WORLD ....................................................... 794
II.
A. “As Clear As Language Can Make It”: The Meaning of the
Civil War Amendments ................................................................ 795
B. “Inseparable Incidents”: Freedom of Contract and the
Paradox of Fundamental Rights .................................................. 801
C. “An Outcast Lurking About the Borders”: The Emergency
Powers of the Federal Government ............................................. 804
CONCLUSION ................................................................................................... 809
INTRODUCTION
In the Slaughter-House Cases, the Supreme Court identified “the one
pervading purpose” of the Reconstruction Amendments as “[t]he freedom of
the slave race, the security and firm establishment of that freedom, and the
protection of the newly-made freeman and citizen from the oppressions of
those who had formerly exercised unlimited dominion over him.”1 Although
the Court was unwilling to say, given the Amendments’ sweeping language,
“that no one else but the negro can share in this protection,” the Court thought
that “any fair and just construction” of the Amendments had to rest on an
understanding of the centrality of the condition of African Americans.2
How ironic, then, that at the turn of the twentieth century, the Supreme
Court advanced such a muscular and ahistorical construction of the Fourteenth
Amendment’s Due Process Clause in Lochner v. New York,3 just as it was
*
Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law
School. I first worked on this project over twenty years ago, in Owen Fiss’s Supreme Court
seminar at Yale Law School. I owed Owen then, and continue to owe him today,
tremendous gratitude for having pointed me in the direction of Hodges v. United States, 203
U.S. 1 (1906), and having suggested that I write about the case.
1
83 U.S. (16 Wall.) 36, 71 (1873).
2
Id. at 72.
3
198 U.S. 45 (1905).
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dismantling the Reconstruction Amendments’ protections of black Americans.4
For example, in Giles v. Harris, the Court refused to enforce the Fifteenth
Amendment’s prohibition on racial discrimination in voting.5 And only a year
after Lochner, in Hodges v. United States, the Court that had so recently
extolled “the right of free contract”6 as an aspect of personal liberty refused to
protect black workers’ ability to carry out their employment contracts as an
aspect of the liberty that the Thirteenth Amendment protects.7
What accounts for the different treatment of bakers in New York and
lumbermen in Arkansas? This essay addresses that question. Part I describes
how Hodges arrived at the Supreme Court, how the parties presented their
claims, and what the Supreme Court decided. Part II considers a broader issue:
how Hodges relates to two independent doctrinal issues – the purpose of the
Civil War Amendments and the concept of freedom of contract. There, I argue
that Justice Brewer’s opinions misread precedent in order to preserve a
distinctive vision of the federal government. Far from misunderstanding the
great cases that preceded Hodges, Justice Brewer comprehended them all too
well.
It may seem jarring, in a symposium devoted to the centenary of Lochner, to
include an essay in which Lochner remains largely offstage. But that
incongruity is the very point of my argument. For all that Lochner celebrated
“the right of the individual to liberty of person and freedom of contract”8 and
located constitutional protection for that liberty in the central text of
Reconstruction, the Lochner Court was unwilling to protect (or, more
4
For example, the same Court that decided Lochner also decided Berea College v.
Kentucky, 211 U.S. 45 (1908), which upheld a state prosecution of a private, racially
integrated college for violating the state’s mandatory segregation law. The Court rejected
the college’s argument that a law depriving a private institution of the ability to control its
internal affairs and depriving individuals of the right to attend an educational institution of
their own choice violated the Fourteenth Amendment’s Due Process Clause. Id. at 58; see
also MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND
THE STRUGGLE FOR RACIAL EQUALITY 23-24 (2004) (describing the tension between the
Court’s opinions in Lochner, Berea College, and Plessy v. Ferguson, 163 U.S. 537 (1896)).
For an extensive examination of the Court’s turn-of-the-century race cases, see OWEN M.
FISS, HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE TROUBLED BEGINNINGS
OF THE MODERN STATE, 1888-1910 (1993).
5
189 U.S. 475, 486-88 (1903) (denying plaintiff’s requested remedy on the grounds that
the Court has no power to impose such equitable remedy). For the best recent scholarly
discussion of Giles, see Richard H. Pildes, Democracy, Anti-Democracy, and the Canon, 17
CONST. COMMENT. 295 (2001).
6
See Lochner, 198 U.S. at 57. For a thoughtful discussion of the evolution of the idea of
freedom of contract, see William E. Forbath, The Ambiguities of Free Labor: Labor and the
Law in the Gilded Age, 1985 WIS. L. REV. 767, comparing post-Civil War interpretations of
the freedom to contract.
7
See Hodges v. United States, 203 U.S. 1 (1906).
8
Lochner, 198 U.S. at 57.
2005]
CONTRACTING THE THIRTEENTH AMENDMENT
785
precisely, to authorize the federal government to protect) liberty of person and
freedom of contract when it came to black Americans in the South – the
original intended beneficiaries of Reconstruction.
I.
“A GENERAL GRIEVANCE IN THIS STATE AND SECTION”
Although the precise question that Hodges presented was one of federal
power – whether the enforcement clause of the Thirteenth Amendment
authorized federal prosecutions of racially motivated private impairments of
the right to contract9 – the case did not stem from decisions made by a
centralized sovereign, a Washington-based army of occupation in the states.
The turn-of-the-century federal government really consisted of two loosely
connected entities: the administration in Washington and federal officials in
the states. The government’s position in Hodges reflected an interplay
between the two entities’ concerns.
A.
The Prosecution
On May 8, 1903, William G. Whipple, the United States Attorney for the
Eastern District of Arkansas, wrote to Attorney General Philander C. Knox
informing him that Whipple was “about to enter upon an important
prosecution” involving “white-capping” in Cross County, Arkansas.10
Whipple stated that “[a]n inferior class of white men feeling themselves unable
to compete with colored tenants combined to drive them out of the country.
The movement is denounced by all the respectable white element irrespective
of party.”11 Whipple asked the Justice Department to provide funds for a
special prosecutor to handle the case.12
A week later, the Attorney General authorized the expenditure, writing that
“[f]ully alive to the aggressive attitude of such organized bands as those to
which you refer, and determined to meet such emergencies with proper and
decisive action, we shall appoint Mr. Houser [whom Whipple had
9
See Hodges, 203 U.S. at 6.
See Letter from William G. Whipple, U.S. Attorney for the Eastern District of
Arkansas, to Philander C. Knox, Attorney General (May 8, 1903) (This letter, like the letters
cited in notes 13, 23, 38, 41, and 150, were reviewed by the author some years ago, and
were not available during the editing of this article. The Boston University Law Review did
not check or verify any quotations from or statements related to these letters.). While the
term “whitecapping” was often applied to generic acts of violence by whites against blacks
(the phrase apparently coming from a colloquial term referring to members of the Ku Klux
Klan), see Wayne R. Allen, Note, Klan, Cloth and Constitution: Anti-Mask Laws and the
First Amendment, 25 GA. L. REV. 819, 823 n.32 (1991), its more precise meaning centers on
the use of threats to intimidate a person “into an abandonment or change of home or
employment.” See MISS. CODE ANN. § 97-3-87 (2004).
11
Letter from William G. Whipple to Philander C. Knox, supra note 10.
12
Id.
10
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requested].”13
Houser proceeded with the investigation. Four months later, the U.S.
Attorney’s office informed the Attorney General that two sets of indictments
had been obtained.14 One set indicted eleven men who had intimidated a group
of sharecroppers.15 The other set indicted fifteen men who had forced black
workmen to leave work at a sawmill in Whitehall, a small town in Poinsett
Country, a mountainous region in northeastern Arkansas.16 This latter case,
which was to reach the Supreme Court as Hodges v. United States, was
originally captioned United States v. Maples. The indictment charged that on
August 17, 1903, the defendants had appeared at the mill and had intimidated
the black workmen “with the purpose of compelling them by violence and
threats and otherwise to remove from said place of business, to stop said work
and to cease the enjoyment of [the right and privilege of contracting for their
labor],”17 in violation of sections 1977 and 5508 of the Revised Statutes.18
Although the prosecutions claimed that the defendants had harassed the
workers for race-related reasons,19 it would be a mistake to conclude that the
government’s decision to bring the case was primarily to protect the rights of
black workers. Rather, the prosecutions seem to have been undertaken at the
instigation of prominent white citizens because the whitecappings interfered
with their economic interests.20 Put bluntly, the race of the intimidated
13
See Letter from William G. Whipple, U.S. Attorney for the Eastern District of
Arkansas, to Philander C. Knox, Attorney General (Oct. 24, 1903).
14
Id.
15
United States v. Morris, 125 F. 322, 322 (E.D. Ark. 1903).
16
Letter from William G. Whipple, U.S. Attorney for the Eastern District of Arkansas, to
Philander C. Knox, Attorney General 1 (Oct. 16, 1903).
17
Transcript of Record at 4, Hodges v. United States, 203 U.S. 1 (1906) (No. 14 of Oct.
1905 term) [hereinafter Hodges Record].
18
See Rev. Stat. § 5508 (1874) (current version at 18 U.S.C. § 241 (2004)); Rev. Stat. §
1977 (1874) (current version at 42 U.S.C. § 1981 (2004)). These statutes remain two of the
primary sources of federal prosecutions for violations of civil rights. Section 241 provides
in pertinent part that
[i]f two or more persons conspire to injure, oppress, threaten, or intimidate any person
in any State, Territory, Commonwealth, Possess ion or District in the free exercise or
enjoyment of any rights or privilege secured to him by the Constitution or laws of the
United States, or because of his having exercised the same . . . [t]hey shall be fined . . .
and imprisoned . . . .
18 U.S.C. § 241. Section 1981 provides in pertinent part that “[a]ll persons within the
jurisdiction of the United States shall have the same right in every State and Territory to
make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981.
19
See Hodges v. United States, 203 U.S. 1, 2 (1906) (outlining the basis of the charges
against the defendants).
20
As David Bernstein points out, whitecapping served as a mechanism for distorting the
labor market in the South. See David E. Bernstein, The Law and Economics of Post-Civil
War Restrictions on Interstate Migration by African-Americans, 76 TEX. L. REV. 781, 789
n.42 (1998).
2005]
CONTRACTING THE THIRTEENTH AMENDMENT
787
workers was simply a lever by which the “respectable white element” sought
to invoke federal power in its battle with “an inferior class of white men.”21
The circumstances surrounding another Arkansas case, Boyett v. United
States,22 strengthens this hypothesis. Boyett involved the whitecapping of a
group of railroad workers.23 There, Whipple had appointed Harry H. Myers as
a special assistant to prosecute the case.24 In response to the Justice
Department’s request that he complete an expense voucher sheet in order to be
compensated for his work, Myers stated that:
[I] beg to say I do not expect and cannot accept any remuneration for
assisting the District Attorney [sic] in these cases. The Railroad Co.
who’s [sic] attorney I am, was interested in the prosecution for its own
preservation only and asked you to appoint me special assistant U.S.
attorney that I might assist, with no expectation that it should cost the
Government any fee.25
Thus, although the federal Constitution was invoked, it would be a mistake
to view the Hodges prosecution as a sort of carpetbagging. All of the
participants were local; all the interests to be served were similarly local.
Both the Morris and the Maples defendants filed demurrers to the
indictments, challenging the constitutionality of § 1977 and stating that, taken
together with § 5508, these laws constituted an “infringement on the rights of
the several States and the people thereof.”26 The defendants’ demurrers were
overruled in a substantial opinion by the federal district judge sitting in Helena,
21
David Bernstein has offered an analogous account of Lochner. In his account, New
York’s maximum hours law was not primarily motivated by a desire to protect workers from
their employers. See David E. Bernstein, Lochner v. New York: Barrier to the Regulatory
State, in CONSTITUTIONAL LAW STORIES 325, 328-33 (2004). Rather, it reflected the efforts
of unionized, largely native-born bakery workers to squelch competition from smaller, nonunion, largely immigrant bakeries. Id.; see also David Bernstein, Note, The Supreme Court
and “Civil Rights,” 1886-1908, 100 YALE L.J. 725, 735-36 (1990). Elsewhere, Bernstein
has elaborated on his argument that freedom of contract doctrine might have provided black
workers with greater civil rights during the early twentieth century by protecting them
against a variety of discriminatory legislation. See generally DAVID E. BERNSTEIN, ONLY
ONE PLACE OF REDRESS: AFRICAN AMERICANS, LABOR REGULATIONS, AND THE COURTS
FROM RECONSTRUCTION TO THE NEW DEAL (2001). As I shall suggest, however, the Court’s
embrace of a strong state action requirement, combined with its hostility to federal
intervention, meant that black workers were left largely unprotected from private
interference with their ability to contract freely for the benefits of their labor.
22 207 U.S. 581 (1907) (per curiam). The lower court decisions in Boyett are unreported.
The defendants’ convictions, however, were overturned in light of the Supreme Court’s
decision in Hodges. See id. at 581.
23
Letter from Harry H. Myers to Philander C. Knox, Attorney General (Apr. 30, 1906).
24
Id.
25
Id. (emphasis added).
26
See Hodges Record, supra note 17, at 6.
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Jacob Trieber.27 Trieber, a German immigrant, had an intellectual interest in
the condition of blacks and the meaning of the Civil War Amendments. He
later wrote an article for the Arkansas Historical Association, The Legal Status
of the Negro in Arkansas Before the Civil War.28 Judge Trieber also had
practical experience with the political position of blacks in Arkansas. In 1888,
he had defeated a black Republican, J.A. Simmons, for his party’s nomination
for convention temporary chairman.29 Thus, Judge Trieber clearly operated
within the political universe of Arkansas, although his sympathetic views of
civil rights were decidedly in the minority.
Judge Trieber’s opinion in Morris began by recognizing that, because the
black workmen had been threatened by private citizens, the scope of the
Thirteenth Amendment was the key to the government’s case,30 given that The
Civil Rights Cases had restricted the scope of the Fourteenth Amendment to
state action.31 Quoting Justice Swayne’s opinion in United States v. Rhodes,32
Judge Trieber wrote that the Thirteenth Amendment marked “a great extension
of the powers of the national government.”33 If the freedom to work and to be
27
See United States v. Morris, 125 F. 322, 331 (E.D. Ark. 1903). Judge Trieber
apparently filed the same opinion in both Morris and Maples. See id.; see also Hodges
Record, supra note 17, at 7-17 (printing the Maples [Hodges] opinion). I cite the Morris
version because it is reported.
28
Jacob Trieber, The Legal Status of the Negro in Arkansas Before the Civil War, 3
BULL. ARK. HIST. SOC’Y (1911). Trieber was the first Jew to be named to a federal
judgeship. See AVIAM SOIFER, LAW AND THE COMPANY WE KEEP 175 (1995). For an
account of Judge Trieber’s career and his treatment of racial discrimination, see Gerald W.
Heaney, Jacob Trieber: Lawyer, Politician, Judge, 8 U. ARK. LITTLE ROCK L.J. 421, 444-49
(1986).
29
See Tom Dillard, To the Back of the Elephant: Racial Conflict in the Arkansas
Republican Party, 33 ARK. HIST. Q. 3, 6-7 (1974) (remarking that the race between Trieber
and Simmons was not unusual in Arkansas at that time). Indeed, Judge Trieber was later to
be, in some sense, a cause of black powerlessness. In January 1905, he upheld a poll tax
which was used to disenfranchise Arkansas blacks. See John William Graves, Negro
Disenfranchisement in Arkansas, 26 ARK. HIST. Q. 199, 219 (1967).
30
See Morris, 125 F. at 323-24 (addressing the scope of the Thirteenth Amendment and
dismissing the potential application of the Fourteenth and Fifteenth Amendments to the
case).
31
109 U.S. 3 (1883).
32
27 F. Cas. 785 (C.C.D. Ky. 1866) (No. 16,151). There, Justice Swayne had described
the Amendment in these terms:
It trenches directly upon the powers of the states and of the people of the states. It is
the first and only instance of a change of this character in the organic law. It destroyed
the most important relation between capital and labor in all the states where slavery
existed. It affected deeply the fortunes of a large portion of their people. It struck out
of existence millions of property. The measure was the consequence of a strife of
opinions and a conflict of interests, real or imaginary, as old as the Constitution itself.
Id. at 788.
33
See Morris, 125 F. at 325 (remarking that the Thirteenth Amendment reaches every
2005]
CONTRACTING THE THIRTEENTH AMENDMENT
789
compensated for that work – the laborers’ freedom to contract – was, as the
indictment claimed, “a right and privileged conferred . . . by the thirteenth
amendment,”34 then the federal government as well as the state could prosecute
its infringement.
Judge Trieber found that the right to contract was a “fundamental or natural”
right, “recognized among all free people.”35 In a slip which becomes almost
prophetic in light of the Supreme Court’s later opinion, he then quoted the
Declaration of Independence: “We hold these rights [sic] to be self-evident:
That all men are created equal; that they are endowed with certain inalienable
rights; that among these are life, liberty, and the pursuit of happiness.”36
Judge Trieber asserted that the protection of this right could not be entrusted
to the states. The states’ actions after the Civil War demonstrated their lack of
commitment:
As is well known, in many of the States in which slavery had existed
prior to the adoption of the thirteenth amendment, legislation was enacted
in relation to the negroes, which practically established a system of
peonage but little removed from that of slavery; and owing to the
passions and prejudices aroused by the Civil War, and which at that time
had not yet been allayed, irresponsible persons would prevent negroes
from working of cultivating lands, and the courts of the states were
powerless to protect them. It will serve no useful purpose to recite in this
opinion of the state of affairs then existing . . . .37
Certainly, Judge Trieber must have been aware that L.C. Going, one of the
defense attorneys in both Morris and Maples, was also the state prosecutor.38
Because only federal enforcement could ensure the fundamental right to
contract, it followed that the Thirteenth Amendment necessarily conferred
upon the federal government the power to prosecute its infringement. Thus,
Judge Trieber overruled the demurrers and ordered that both cases go
forward.39
Both cases were tried before juries.40 In Morris, Whipple requested funds
from Washington to induce one of the defendants to turn state’s evidence, but
citizen in its protection and admonition).
34
See Hodges Record, supra note 17, at 4.
35
See Morris, 125 F. at 325-26 (finding that the right to “purchase, lease, and cultivate
lands, or to perform honest labor for wages” did not require any written law for
recognition).
36
See id.
37
Id. at 326-27.
38
See Letter from L.C. Going, Counsel for Plaintiffs in Error, to the Assistant Attorney
General 1 (Feb. 7, 1906) (asking for rescheduling of oral argument in Hodges because “I
am . . . a candidate for re-election to the office of prosecuting attorney of this district” and
traveling to Washington would interfere with the primary campaign).
39 See Morris, 125 F. at 331.
40
See, e.g., Hodges v. United States, 203 U.S. 1, 23 (1906).
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[Vol. 85:783
that request was denied.41 As a result, Whipple reported that “it was found
impossible by any direct testimony or by satisfactory circumstantial evidence
to establish a ground upon which to ask a verdict of the jury, though the jurors,
as well as the Court, were convinced we had indicted the right men.”42
Whipple apparently took comfort, however, in the fact that the defendants
had “been in jail awaiting trial for one whole year, . . . and they have been
subjected to great expense in the employment of attorneys to defend them”43 –
an early version of the notion that the process is the punishment. He also
reported that the defendants would be tried in state court for the murder of a
detective who had been sent to investigate the incident.44 That the defendants
would be prosecuted for the murder of a white man – the detective – but not
for interfering with the black workers’ jobs, reinforces the truth of Judge
Trieber’s view that state court enforcement of black men’s rights was unlikely.
Whipple had more success in the Maples prosecution. There, although
twelve of the defendants were acquitted, three were convicted – William
Clampit, Wash McKinney, and Reuben Hodges.45 The three convicted
defendants appealed, and in March 1904, an order granting their writ of error
brought the case to the Supreme Court.46 At this point, the Department of
Justice took over the case, which shifted the prosecution’s perspective
decisively. The focus of the case now lay entirely on the rights of blacks to
contract for their labor; the rights of wealthy whites to use blacks to drive
down labor costs disappeared from the picture.47
B.
Hodges Before the Supreme Court
The central issue before the Supreme Court, as both sides recognized, was
not, given Lochner, whether a liberty or right of contract existed.48 Clearly it
41
See Letter from William G. Whipple, U.S. Attorney for the Eastern District of
Arkansas, to Philander C. Knox, Attorney General 1-2 (Nov. 18, 1903); Letter from William
G. Whipple, U.S. Attorney for the Eastern District of Arkansas, to Philander C. Knox,
Attorney General 1 (Mar. 22, 1904).
42
Letter from William G. Whipple to Philander C. Knox (Mar. 22, 1904), supra note
Error! Bookmark not defined., at 1.
43
Id.
44 Id. at 1-2.
45
Id. at 1. Whipple’s report displayed both considerable pride and over-optimism:
It is believed that this is the first conviction of that offense in any Federal Court and
that the effect of this conviction will be far reaching for good. It is probably that this
will be the last attempt, in this State at least, to compel Negroes to abandon their work
on account of their race.
Id.
46
See Hodges Record, supra note 17, at 22.
47
The decision in Hodges contains no discussion of the economic motivations behind
whitecapping and focuses entirely on the constitutional issues.
48 See Hodges v. United States, 203 U.S. 1, 6 (1906) (admitting, on behalf of the
defendants, that there is a right to contract).
2005]
CONTRACTING THE THIRTEENTH AMENDMENT
791
did, and had the state of Arkansas prosecuted the defendants for interfering
with the workers’ employment, the defendants would have had no
constitutional defense.49 Rather, the central issue was whether the Thirteenth
Amendment made the right to contract one guaranteed by the Constitution or
laws of the United States and therefore one that the federal government had the
power to protect.
The appellants argued that there was a distinction between rights declared or
recognized by the Constitution and rights granted by it.50 They placed the
right of contract within the former group, and argued that its protection was
therefore left to the states.51 That such a result seem paradoxical to us – the
more fundamental a right, the less the federal government has a stake in
protecting it – is a reminder of how much has changed since Hodges.
The appellants then analyzed the relation of the Thirteenth Amendment to
this distinction of rights. That Amendment, they suggested, freed the slaves
and made them equals before the law with white men.52 Once this was done –
and Section 1 of the Amendment accomplished this through its own
declaratory force – there was nothing more for the federal government to do.53
Since the right to contract had not been within the purview of the federal
government before the passage of the Thirteenth Amendment, the Amendment
did not create a federal interest in enforcing or protecting that right.54
The brief for the United States painted the case in an entirely different light.
The question, the United States argued, was not whether the federal
government now had plenary power to enforce the right to contract, but
whether the Thirteenth Amendment gave the government the power to protect
49
As long ago as 1906, for example, Arkansas’ neighboring state, Mississippi, had a
statute forbidding whitecapping, which made it a crime for a person to “by placards, or other
writing, or verbally, attempt by threats, direct or implied, of injury to the person or property
of another, to intimidate such other person into an abandonment or change of home or
employment . . . .” See MISS. CODE ANN. § 97-3-87 (2004) (citing as the source for the
current prohibition section 1398 of the 1906 Code). The Arkansas Supreme Court later
upheld the constitutionality of a 1943 Arkansas statute that made it a crime “for any person
by the use, or threat of the use, of force or violence to prevent or attempt to prevent any
person from engaging in any lawful vocation within this state.” See Smith v. State, 179
S.W.2d 185, 187 (Ark. 1944) (declaring the 1943 act constitutional); see also 1943 Ark.
Acts 193, § 1 (codified as amended at ARK. CODE ANN. § 11-3-401 (2004)).
50
See Hodges, 203 U.S. at 6 (arguing that “[t]he court below failed to recognize the
distinction between rights declared and recognized, but not granted or secured by the
Constitution”); see also Michael G. Collins, “Economic Rights,” Implied Constitutional
Actions, and the Scope of Section 1983, 77 GEO. L.J. 1493 (1989) (discussing the distinction
in the context of § 1983’s protection of rights “secured by” the Constitution).
51
See Abstract, Argument and Brief for Plaintiffs in Error at 6-8, Hodges v. United
States, 203 U.S. 1 (1906) (No. 14 of Oct. 1905 term).
52
See id. at 8, 12.
53
Id. at 8, 11-13.
54
Id.
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the ability to contract when the sole motive for the attempted deprivation was
the race of a contracting party.55
The Thirteenth Amendment, the government contended, had been intended
to secure for blacks more than just the end of formal slavery; it was meant to
grant “practical freedom.”56 As blacks had had no rights before the passage of
the Reconstruction Amendments, it could therefore be said that the
Constitution – through the Thirteenth and Fourteenth Amendments – was
precisely the tool that had granted and secured these rights to them.57 One of
the bedrocks of practical freedom was the right to contract and to receive
compensation for the value of one’s labor. The absence of this right was one
of the “badges and incidents” of slavery,58 and through Section 2 of the
Thirteenth Amendment, Congress had the power to eliminate such badges and
incidents, even by addressing the activities of private parties directly.59
Finally, the Department of Justice, like Judge Trieber, warned of the
consequences of denying the federal government the power to protect black
workers. The Court should not pretend, the government argued, that the states
would protect this right: “It is idle to say that the laws of Arkansas leave the
court open to him, for intimidation, like that alleged in this indictment, so
effective that it causes the negro not only to abandon his contract, but to leave
the place of its performance, utterly nullifies those laws.”60 The government’s
position was clear: If there really were a right of contract, then only the force
of the federal government could protect it adequately.
This assessment and the Court’s reaction to its implications were refined in
the course of the Attorney General’s oral argument.61 The Attorney General
had a delicate task. On the one hand, he sought to limit the claim of federal
power solely to prosecuting racially motivated interference with contracts
entered into by black workers, so as to avoid asserting a more general police
power.62 On the other hand, he needed to persuade the Court of the pervasive
urgency of permitting this limited exercise of federal power.63
Much of the Court’s questioning centered on this first issue. Justice Brewer
probed the scope of the government’s claim from two directions. First, he
asked whether the black man’s right to contract differed from the white
55
Brief for the United States at 5, Hodges.
See id. at 11 (analyzing the legislative history of the Thirteenth Amendment to
determine its scope).
57 Id. at 36.
58 See id. at 14. See generally Forbath, supra note 6 (discussing various meanings of
“free labor”).
59 Brief for the United States at 11-13, Hodges.
60
Id. at 38.
61
See Oral Argument of the Attorney-General for the United States at 4, Hodges.
62
See id. at 15-17 (outlining the limits of the federal enforcement power).
63
See id. at 40.
56
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CONTRACTING THE THIRTEENTH AMENDMENT
793
man’s.64 Second, he asked whether deprivations of black workers’ rights were
always an offense against the Thirteenth Amendment.65
The government sought to allay the Court’s fears by sharply limiting the
circumstances that justified federal interference. There was no difference, the
government argued, between blacks’ and whites’ right to contract.66 Instead,
the Thirteenth Amendment operated only to prevent anyone from interfering
with blacks’ enjoyment of that right because of their color.67 Thus, interfering
with a black individual’s right to contract because he was a member of a union,
or because he was a Republican, would not be reachable by the federal
government.68 That interference would not be an attempt to reimpose on him
the badges or incidents of slavery that the Thirteenth Amendment was intended
to prohibit.69
At the same time, the government argued for a broad interpretation of the
Thirteenth Amendment. Before its passage, “freedom was not secured to any
of the people of the United States by the Constitution.”70 The Thirteenth
Amendment, however, changed this state of affairs:
It took the whole subject of freedom out of the custody and control of the
several States and placed it in the keeping of the nation. It gave to the
nation the same power to guard, protect and defend the freedom of all the
people of the United States, as, for instance, it had to guard, protect and
defend commerce among the States. In both cases, the power is
plenary.71
The Thirteenth Amendment, in the government’s view, was thus both firmly
grounded in the specific historical situation of emancipation and reflective of a
more general expansion of the federal government’s proper concerns.
The Attorney General concluded his argument by once again asking the
Justices to assess the scope of the Thirteenth Amendment in light of the
dangers which leaving the protection of the right of contract in the hands of the
states would create:
The war of races is no longer a sectional war; it is as bitter in the State of
Chase and Giddings as it is in the State of Arkansas . . . . If the Negro
who is in our midst can be denied the right to work and must live on the
outskirts of civilization, he will become more dangerous than the wild
64
See id. at 4.
See id. at 16 (asking whether denial of labor rights is always akin to slavery).
66 See id. at 4.
67 Id. at 8.
68
Id. at 16-17.
69
Id. at 29 (arguing that denying rights due to ill will or a non-race-related crime does
not fall within the purview of the Thirteenth Amendment because there is no “badge” of
slavery).
70
Id. at 10.
71
Id. at 12.
65
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beasts, because he has a higher intelligence than the most intelligent
beast. He will become an outcast lurking about the borders and living by
depredation.72
Ultimately, the government’s argument rested on a complex claim about the
constitutional meaning of the Civil War. Not only did Section 1 of the
Thirteenth Amendment protect black Americans’ exercise of central aspects of
free personhood, but the enforcement clause in Section 2 of the Thirteenth
Amendment gave the federal government an expansive new power to protect
blacks against not only state-sponsored discrimination but private animus as
well. And this latter power was necessary precisely because the states
remained unwilling or unable to guarantee the practical freedom of their black
citizens.
II.
HODGES AND THE WIDER WORLD
By a 7-2 vote, the Supreme Court reversed Judge Trieber’s decision and
ordered the Hodges indictments dismissed.73 Justice Brewer’s opinion for the
Court rested on the view that the Civil War had produced only a relatively
circumscribed change in the federal government’s power to reach private
conduct.74 The original Constitution had placed the entire domain of contract
law “within the constitutional and legislative power of the States, and without
that of the Federal Government,”75 and nothing about the Reconstruction
Amendments fundamentally altered that allocation of power.76 To be sure, the
Thirteenth Amendment abolished slavery and gave Congress the power to
address the “incidents or badges of slavery.”77 Yet the Court seemed to
confine those incidents and badges to legal disabilities,78 rather than taking a
more expansive view that looked at freedmen’s practical ability to enjoy the
benefits of economic activity. Thus, even after the Thirteenth Amendment, the
responsibility for protecting blacks against private interference with their
ability to benefit from contracts remained with the states:
At the close of the civil war, when the problem of the emancipated slaves
was before the Nation, it might have . . . established them as wards of the
Government like the Indian tribes, and thus retained for the Nation
72
Id. at 40.
See Hodges v. United States, 203 U.S. 1, 20 (1906). The first Justice Harlan, joined by
Justice Day, dissented. Id. at 20 (Harlan, J., dissenting). Oddly, although the Court
announced its judgment on May 28, 1906, the opinion was apparently withheld until the
dissent was filed nearly four months later, on October 24, 1906. Id. at 1.
74 See id. at 15, 18-19.
75
Id. at 15.
76
Id. at 18-19 (rejecting the idea that the Thirteenth Amendment now entitled the federal
government to enforce deprivations of private rights between individual citizens).
77
Id. at 19.
78
See id. at 17.
73
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795
jurisdiction over them, or it might, as it did, give them citizenship. It
chose the latter. . . . Whether this was or was not the wiser way to deal
with the great problem is not a matter for the courts to consider. It is for
us to accept the decision, which declined to constitute them wards of the
Nation . . . . but gave them citizenship, doubtless believing that thereby in
the long run their best interests would be subserved, they taking their
chances with other citizens in the States where they should make their
homes.79
Ultimately, however, Justice Brewer’s opinion is striking as much for what
it omits as for what it contains. This section explores the connections the
Court left undrawn between Hodges and three central concerns of the turn-ofthe-century Court: (1) the relationship of the Civil War Amendments to the
status of black Americans; (2) the nature of the right of contract; and (3) the
proper sphere of federal activity.
A.
“As Clear As Language Can Make It”: The Meaning of the Civil War
Amendments
Justice Brewer’s opinion in Hodges cites only one prior decision – the
Slaughter-House Cases80 – in a substantive context.81 The crux of the
Slaughter-House Cases had been the centrality of black slavery to the
Reconstruction Amendments.82 In rejecting a constitutional challenge brought
by a group of New Orleans butchers to a state-legislated slaughterhouse
monopoly, Justice Miller’s opinion for the Court emphatically rejected the
butchers’ attempt to put the commercial restriction laid upon them within the
Thirteenth Amendment’s sphere of concern:
To withdraw the mind from the contemplation of this grand yet simple
declaration of the person freedom of all the human race within the
jurisdiction of this government – a declaration designed to establish the
freedom of four millions of slaves – and with a microscopic search
endeavor to find in it a reference to servitudes, which may have been
attached to property in certain localities, requires an effort, to say the least
of it.83
And that, concluded the Court, was “all that we deem necessary to say on the
application of that article to the statute of Louisiana, now under
consideration.”84
79
Id. at 19-20.
83 U.S. (16 Wall.) 36 (1873).
81
See Hodges, 203 U.S. at 15.
82
See Slaughter-House Cases, 83 U.S. (16 Wall.) at 68-69, 71 (observing that slavery
was the rationale behind the Thirteenth Amendment).
83
See id. at 69 (deriding the idea that the Thirteenth Amendment could be used to redress
commercial monopoly concerns in the absence of racial implications).
84
Id.
80
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The most striking aspect of Justice Brewer’s use of this passage from the
Slaughter-House Cases is how he “edits” it. Gone is the reference to the
Thirteenth Amendment’s being “a declaration designed to establish the
freedom of four millions of slaves,” replaced by a set of ellipses.85 The
omission is telling. In the Slaughter-House Cases, the Court decried the
plaintiffs’ attempt to deflect the Thirteenth Amendment away from its central
concern with “the institution of African slavery” and toward the merely
semantically similar notion of “servitudes” attached to property.86 In Hodges,
however, the Court treated the Thirteenth Amendment not essentially, nor even
primarily, as a provision addressed to the emancipation of blacks, but rather as
a “denunciation of a condition and not a declaration in favor of a particular
people.”87
The Court’s omission reflects a broader point: the Supreme Court of 1906
was no longer interested in the plight of black Americans. The SlaughterHouse Cases were decided only a decade after the Emancipation Proclamation.
By the time of Hodges, however, the Supreme Court had already participated
in a wholesale retreat from Reconstruction.88 The Thirteenth Amendment, for
the Hodges Court, had become like the previous twelve amendments were to
the Slaughter-House Court, “historical and of another age.”89
In addition, to the extent that the Thirteenth Amendment was intended to
reach less overt forms of servitude, those other forms could be understood in
1873 to emanate directly from the still-robust afterlife of actual black slavery.
85 Here is how the passage from the Slaughter-House Cases appears in the Hodges
opinion: “To withdraw the mind from the contemplation of this grand yet simple declaration
of the personal freedom of all the human race within the jurisdiction of this Government . . .
requires an effort, to say the least of it.” Hodges, 203 U.S. at 17 (omission in original).
86
See Slaughter-House Cases, 83 U.S. (16 Wall.) at 68 (arguing that the Thirteenth
Amendment was intended to provide freedom to slaves, not to expand the liberties of white
men).
87
See Hodges, 203 U.S. at 16. Ironically, even when the early twentieth century
Supreme Court did adopt an expansive interpretation of the Thirteenth Amendment, it did so
by deliberately ignoring the Amendment’s roots in African slavery. See Bailey v. Alabama,
219 U.S. 219, 231 (1911). In striking down an Alabama statute as a violation of the antipeonage principle, the Court stated that
[w]e at once dismiss from consideration the fact that the plaintiff in error is a black
man . . . . The statute, on its face, makes no racial discrimination, and the record fails to
show its existence in fact. No question of a sectional character is presented, and we
may view the legislation in the same manner as if it had been enacted in New York or
in Idaho. Opportunities for coercion and oppression, in varying circumstances, exist in
all parts of the Union, and the citizens of all the States are interested in the maintenance
of the constitutional guarantees, the consideration of which is here involved.
Id.
88
For some particularly striking examples of the Supreme Court’s active participation in
the dismantling of Reconstruction, see generally RICHARD M. VALLELY, THE TWO
RECONSTRUCTIONS: THE STRUGGLE FOR BLACK ENFRANCHISEMENT (2004).
89
See Slaughter-House Cases, 83 U.S. (16 Wall.) at 67.
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797
Several decades later, however, those same oppressions were less overtly tied
to the formal legal disabilities of pre-Civil War slavery, at last in the minds of
the Hodges Court. As C. Vann Woodward points out, a prevalent sociological
view of the early 1900s was William Graham Sumner’s distinction between
“stateways” and “folkways.”90 This distinction implied, as the Court had
pointed out in Plessy v. Ferguson,91 that not every distinction between blacks
and whites could be ascribed to the effects of slavery. Some distinctions
instead stemmed from what the Court and the white public saw as blacks’
immutably servile nature.92
In a sense, then, Justice Brewer correctly characterized the government’s
position as withdrawing the mind from the grand yet simple meaning of the
Amendment. The prosecution in Hodges addressed both a more mundane and
more complex problem than the problem the Amendment’s framers had faced.
It is one thing for a federal government of limited and enumerated powers to
abolish slavery; it is quite another for it actually to be responsible for securing
personal freedom to particular individuals. The government was, of course,
arguing that only by taking this latter step could the Amendment be given
continuing content. The Court’s rejection of this argument, however, was not
solely an attempt to stick its collective head in the sand. Rather, the Court’s
position reflects the recognition that to attack the problem as the prosecution
did in Hodges would require a tremendous change in both the behavior of the
federal government and in the practical scope of the Amendment.
In contrast to Justice Brewer’s heavy reliance on the Slaughter-House
Cases’ discussion of the historical bases of the Civil War Amendments,93
Justice Brewer never mentions the parallel discussion of the two Amendments
by Justice Bradley in the Civil Rights Cases.94 In that decision, the Supreme
Court struck down the Civil Rights Act of 1875, which had prohibited the
denial of equal access to public accommodations on the basis of race, color, or
previous servitude.95 The constitutional infirmity, the Court explained, was
90
See C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 103-04 (2d ed. 1966)
(discussing Sumner’s theory that “stateways” (legislation) cannot change “folkways” (habits
of certain groups) because “folkways” are inherent in the specified group).
91
163 U.S. 537, 542-44 (1896) (arguing that social distinctions between races were
based on certain immutable physical characteristics and not the former condition of slavery).
92
For an extremely thorough treatment of white attitudes toward blacks at the turn of the
century, see GEORGE M. FREDRICKSON, THE BLACK IMAGE IN THE WHITE MIND: THE DEBATE
ON AFRO-AMERICAN CHARACTER AND DESTINY, 1817-1914, at 256-58 (1971), explaining
that many academics and other prominent figures at the turn of the century argued that
African Americans were by nature inferior to other races.
93
This reliance, we shall see, rested on Justice Miller’s discussion in the SlaughterHouse Cases of the Privileges and Immunities Clause of the Fourteenth Amendment. See
infra text accompanying notes 115-117.
94
See Hodges v. United States, 203 U.S. 1 (1906).
95 See Civil Rights Cases, 109 U.S. 3, 11-24 (1883) (evaluating Congress’ power to enact
the Civil Rights Act of 1875).
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that the Fourteenth Amendment was “prohibitory upon the States”;
“[i]ndividual invasion of individual rights is not the subject matter of the
amendment.”96 Having disposed of the Fourteenth Amendment as a
constitutional warrant for the 1875 Act, Justice Bradley then considered the
scope of the Thirteenth Amendment.97 The government had argued that the
denial of equal access to accommodations was “in itself, a subjection to a
species of servitude within the meaning of the amendment.”98
Unlike the Fourteenth Amendment, which dealt with treatment within an
existing framework of laws, the Thirteenth Amendment involved the creation
of a new right:
By its own unaided force and effect it abolished slavery, and established
universal freedom. Still, legislation may be necessary and proper to meet
all the various cases and circumstances . . . . And such legislation may be
primary and direct in its character; for the amendment is not a mere
prohibition of State laws . . . but an absolute declaration that slavery or
involuntary servitude shall not exist in any part of the United States.99
The Thirteenth Amendment’s declaration, in this formulation, was
affirmative rather than prohibitory. It created a positive right in each
individual to be free from slavery or involuntary servitude. The Fourteenth
Amendment, by contrast, was negative in that it denied a right (the right to
discriminate) to a particular entity (the state).
In order to give effect to this positive declaration, the Thirteenth
Amendment undeniably gave Congress the power to legislate.100 Since the
right conferred by the Thirteenth Amendment inhered in the individual,
Congress could act against any entity – governmental or private – that
obstructed this right.
Thus, the dispositive Thirteenth Amendment question in the Civil Rights
Cases was whether the specific behavior against which Congress had legislated
was a badge or incident of slavery. To answer this question, Justice Bradley
appealed explicitly to history: “The long existence of African slavery in this
country gave us very distinct notions of what it was, and what were its
necessary incidents.”101 Most of the incidents to which the Justice pointed
involved the denial of rights which the law otherwise would have vested in an
individual.102 Among these were the lack of standing in the courts and the
inability to make contracts.103
96
See id. at 10-11.
See id. at 20-25.
98 See id. at 20.
99 Id.
100
See id. at 20.
101
Id. at 22.
102
See id.
103 Id. The “necessary incidents” of African slavery included “[c]ompulsory service of
the slave for the benefit of the master, restraint of his movements except by the master’s
97
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799
On the other hand, Justice Bradley found that the refusal of lodgings or
other public accommodations was not a denial that affixed a badge of slavery
to its victim.104 Once again, he appealed to his audience’s historical
understanding of slavery:
There were thousands of free colored people in this country before the
abolition of slavery, enjoying all the essential rights of life, liberty and
property the same as white citizens; yet no one, at that time, thought that
it was any invasion of his personal status as a freeman because he was not
admitted to all the privileges enjoyed by white citizens, or because he was
subjected to discriminations . . . . Mere discriminations on account of
race or color were not regarded as badges of slavery.105
The fact that discrimination against blacks in this arena had been permissible
when there had been a clear line of demarcation between freemen and slave
meant that such discrimination was not necessarily connected with freedom or
the lack thereof. Rather, this type of discrimination was connected with
private racial sentiments – sentiments which did not lie within the scope of the
Thirteenth Amendment.106
For the Civil Rights Cases Court, the Thirteenth Amendment was designed
to put blacks in the same position as whites, and not to give them special
protection. Once the black man had been emancipated, “there must be some
stage in the progress of his elevation when he takes the rank of a mere citizen,
and ceases to be the special favorite of the laws.”107 Thus, a free black man
must look to the same sovereign for the protection of his rights as the white
man: the state.
The Hodges Court, twenty-three years later, took its cue from this latter
appeal to history. Although the intimidation alleged in Hodges unquestionably
interfered with the black workers’ exercise of a right that other citizens were
exercising without restriction, the Court drew a distinction between the denial
of freedom and the imposition of slavery: “[E]very wrong done to an
individual by another, acting singly or in concert with others, operates pro
tanto to abridge some of the freedom to which the individual is entitled. . . .
[N]o mere personal assault or trespass or appropriation operates to reduce the
individual to a condition of slavery.”108
will, disability to hold property, [and] to make contracts.” Id. Bradley described The Civil
Rights Act of 1866 – the original version of Rev. Stat. § 1977 (1874) – as an effort “to wipe
out these burdens and disabilities, the necessary incidents of slavery, constituting its
substance and visible form.” See id.
104 Id. at 25.
105
Id. (emphasis added).
106
Of course, the Court ignored the likelihood that race and condition were linked so
closely before the Civil War that even a nominally free black man was still viewed as part of
a slave class because of his race.
107
Civil Rights Cases, 109 U.S. at 25.
108
Hodges v. United States, 203 U.S. 1, 17-18 (1906).
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The government had conceded in its brief that slavery was more than simply
the denial of freedom.109 Nevertheless, the government argued that the federal
government could reach the defendants’ actions because of an “additional
element, to wit, the infliction of an injury upon one individual citizen by
another, solely on account of his color.”110 In a sense, the government’s
position in Hodges was the obverse of the Court’s position in the Civil Rights
Cases. The government’s brief in Hodges linked the current treatment of
blacks to their historical experience of slavery and argued that because of this
connection, what would be a simple denial of freedom in the mine run of cases
became an attempt to reimpose slavery when perpetuated against blacks.
Justice Brewer emphatically rejected this argument:
The logic [of the government’s position] points irresistibly to the
contention that the Thirteenth Amendment operates only to protect the
African race. This is evident from the fact that nowhere in the record
does it appear that the parties charged to have been wronged by the
defendants had ever been themselves slaves, or were the descendants of
slaves.111
If the Thirteenth Amendment was a grand yet simple declaration of
freedom, it could not have a broader meaning when applied to one group and a
narrower meaning when applied to every other group. Essentially, the Court’s
disingenuous statement about the record in Hodges rests on its refusal to
presume that all animus against blacks stemmed from their past condition of
slavery. In an age when society disliked immigrants for being different and
bandied about ideas of inherent racial superiority, such a dissociation has a
certain logic. Hodges and his compatriots might dislike blacks and wish to
prevent them from exercising their right to contract without any thought to
those black workers’ previous condition of enslavement. For the Thirteenth
Amendment to come into play, some proof or intent to enslave or impose the
badges or incidents of slavery had to be proved.112
109
Brief for the United States at 7, Hodges.
Id.
111
Hodges, 203 U.S. at 18.
112
The Supreme Court has repeatedly used an intent requirement in constitutional law to
narrow the sweep of constitutional provisions. See, e.g., Washington v. Davis, 426 U.S.
229, 238-39 (1976) (rejecting disparate impact theory for an Equal Protection claim against
an applicant entry exam for police officers); see also Pamela S. Karlan, Note,
Discriminatory Purpose and Mens Rea: The Tortured Argument of Invidious Intent, 93
YALE L.J. 111, 112 (1983) (discussing how the Supreme Court has imposed intent
requirements to validate facially neutral statutes); Note, Making the Violation Fit the
Remedy: The Intent Standard and Equal Protection Law, 92 YALE L.J. 328, 331 (1982)
(acknowledging that the Supreme Court’s holding in Davis imposed a new intent
requirement on Equal Protection litigants).
110
2005]
B.
CONTRACTING THE THIRTEENTH AMENDMENT
801
“Inseparable Incidents”: Freedom of Contract and the Paradox of
Fundamental Rights
Because the Thirteenth Amendment did not bring every facet of the
condition of blacks within the federal government’s jurisdiction, the critical
question became whether interference with the right to contract and receive
compensation for one’s labor was one of the “inseparable incidents of the
institution”113 of slavery that the Amendment could reach. Here, a second
striking omission in the Hodges opinion comes into play. Despite the fact that
the case involved the freedom to contract, the Court never mentioned Lochner,
which had held only one year before that the Fourteenth Amendment did
fundamentally alter the scope of the states’ police power.114 How could it be
that freedom of contract was so fundamental a liberty that it was protected
against state infringement by the Fourteenth Amendment but was not a right of
free persons that could be protected against private impairment by the
Thirteenth?
Understanding this paradox requires returning to the Slaughter-House
Cases. The double-barreled argument made by the butchers had created an
ambiguity about the nature of rights.115 The Court held that whatever the
proper relationship between state power and individual liberty, the resolution
of this problem was generally no concern of the federal government.116 The
right to acquire and possess property was a privilege and immunity of the
citizens of the several states; it was not a privilege and immunity of citizens of
the United States.117 The Fourteenth Amendment’s prohibition on state
abridgement of the rights of United States citizens therefore did not prevent
Louisiana from creating a new slaughterhouse monopoly.118 Although the
immediate result of the Slaughter-House decision favored the state’s sphere of
autonomy over the individual’s absolute freedom of contract, the Court’s
construction also seemed to recognize the right’s fundamentality. Unlike the
right to be free, which the Thirteenth Amendment had only recently
established, the right of free men to control their economic destinies antedated
the Civil War and the expansion of the federal government’s powers.119
Dicta in the Civil Rights Cases, however, suggested that freedom of contract
was so fundamental that its “enjoyment or deprivation . . . constitute[d] [an]
113
See Civil Rights Cases, 109 U.S. 3, 22 (1883) (stating that the Thirteenth Amendment
could reach incidents of private conduct that were closely related to the institution of slavery
itself).
114 See Lochner v. New York. 198 U.S. 45, 53 (1908).
115 See Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
116
See id. at 78-82.
117
Id. at 76.
118
Id. at 74 (explaining that the Fourteenth Amendment did not prohibit the states from
violating their own privileges and immunities).
119 See Forbath, supra note 6, at 779-82 (discussing how the idea of a man being in
control of contracting for his own labor dates back to at least the eighteenth century).
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essential distinction between freedom and slavery.”120 There, Justice Bradley
stated that:
[The] disability . . . to make contracts . . . and such like burdens and
incapacities, were the inseparable incidents of the institution [of
slavery]. . . . Congress . . . undertook to wipe out these burdens and
disabilities . . . and to secure to all citizens of every race and color . . .
those fundamental rights which are the essence of civil freedom, namely,
the same right to make and enforce contracts . . . .121
The Civil Rights Cases thus magnified a tension implicit in the SlaughterHouse Cases. On the one hand, there was a distinction between freedom and
slavery, and the Thirteenth Amendment empowered the federal government to
intervene to protect freedom. On the other hand, there was a distinction
between rights inherent in all free men, whose protection was properly the
province of the states, and rights inherent in America’s particular form of
republicanism – such as the right to travel – whose protection lay within the
power of the federal government.
As I have suggested, the question presented by Hodges was further clouded
by the Court’s decision in Lochner. In striking down a New York statute
fixing the maximum hours for bakery employees on Fourteenth Amendment
grounds, Justice Peckham’s opinion for the Court adopted the perspective of
the eager worker.122 From this viewpoint, the law interfered with a worker’s
ability to “‘contract or agree to work,’ more than ten hours per day.”123 Such
interference implicated a “part of the liberty of the individual protected by the
Fourteenth Amendment of the Federal Constitution.”124 The Lochner Court
rejected the possibility that “the statute was intended to meet a case of
involuntary labor in any form.”125
For the Lochner Court, the right to contract was not simply a fundamental
right protected by the Fourteenth Amendment; it was a metaphor for the nature
of civilization. Each man possessed certain rights that he bartered and
employed in the marketplace of society. The state’s obligation was to facilitate
this transacting by making sure that citizens were neither robbed on their way
to the market nor short-weighted when they arrived. That individuals might
not be equally endowed with commodities to trade or that no one would buy
their wares at a price which provided them with the reward they sought was
not the state’s concern.
The fundamentality of contract for the Lochner Court stemmed not so much
120
109 U.S. 3, 22 (arguing that freedom of contract was the fundamental right that the
former slaves had been robbed of during slavery).
121 Id.
122
See Lochner v. New York, 198 U.S. 45, 53 (1908).
123
See id. at 52 (stating that the New York law unnecessarily infringed on two parties’
ability to sit down and contract their employment relationship).
124
Id. at 53.
125
See id. at 52.
2005]
CONTRACTING THE THIRTEENTH AMENDMENT
803
from the circumstances surrounding the adoption of the Civil War
Amendments as from the necessity of contractual behavior to any political
society. In contrast to Hodges’ explicit statement that the federal government
would clearly have been powerless before the Civil War Amendments to
intervene in Arkansas,126 Lochner is pointedly silent about the possibility that
New York might have been free to interfere with liberty of contract before the
adoption of the Fourteenth Amendment. Lochnerian contract, like its Lockean
ancestor, thus seems to have been present at the creation.
Hodges drew a distinction between the formal and practical freedoms of
contract. This distinction was implicit in the economic contractarian
perspective of Lochner, where the formal freedom of contract was divorced
from the social context in which contracts between factory owners and bakers
occurred. The way in which Justice Bradley’s opinion in the Civil Rights
Cases had discussed the “disability . . . to make contracts” as one of the
“inseparable incidents of the institution” of slavery further supported this
distinction.127 In listing the right to contract along with such rights as access to
the courts, Justice Bradley expressed his concern with the public aspect of the
contracting process. It was not so much that the slave could not contract that
was an inseparable part of his enslavement, but rather that he did not have the
legal right to contract (or to enforce contracts). The theoretical, and not the
actual, limitation on the slave’s ability to contract was the essential restriction.
In Hodges, Justice Brewer’s assertion that the Thirteenth Amendment had
by its own force brought the black man to freedom128 implied that the formal
strictures placed on blacks had been lifted, and that blacks therefore stood in
the same position as free men before Emancipation. As blacks and whites
were now on a theoretically equal footing, interference with the contracting
process motivated by racism was no more a concern of the federal government
than interference motivated by any other private purpose.129
If the absence of the formal legal right to contract (rather than a practical
ability to engage in contracting activity) was the inseparable incident of
slavery, then the proper role of the federal government would be protector
against state interference with an individual’s legal entitlement to enter into
contracts and not protector against private citizens’ interference with an
individual’s ability to carry out contracts he had made. The task of protecting
the legal right to contract was most appropriately performed by the federal
courts, exercising their power of judicial review, rather than by individual
federal prosecutors seeking to punish private interference with the execution of
particular contracts. Under this view, Lochner, and not the Civil Rights Cases
or the Hodges prosecutions, was an appropriate use of federal power. If the
126
See Hodges v. United States, 203 U.S. 1, 14 (1906).
See Civil Rights Cases, 109 U.S. 3, 22 (1883).
128
Hodges, 203 U.S. at 19.
129 Indeed, as we shall see, racism might even provide less of a justification for federal
intervention than more economically motivated interference. See infra Part II.C.
127
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federal government was to remain a government of limited powers, then its
protections of rights was better confined to the wholesale activity of judicial
review of state laws interfering with constitutional rights rather than the retail
activity of actually vindicating individuals’ interests. Protecting the right
rather than its exercise comports better with a conception of the federal
government’s primary relationship being with the states rather than with
individuals.
Thus, both Hodges and Lochner affirmed an ideal of the autonomous
individual in the face of the political branches’ determination that such a view
no longer conformed to reality. Parallel passages in the two opinions highlight
this vision. In Lochner, Justice Peckham dismissed the possibility that the
New York statute was simply a labor law.130 According to Peckham, bakers
were as intelligent as every other class; they were just as capable of looking
after their interests as everyone else; and “[t]hey [we]re in no sense wards of
the State.”131 This idea resonates in Justice Brewer’s statement in Hodges that
the nation, in enacting the Thirteenth Amendment, chose not to “establish[]
[the freedmen] as wards of the Government.”132 That bakery employees might
not be in an equal position with their employers and that blacks were unable to
resist white oppression by themselves were facts the Court was slow to
recognize.133
C.
“An Outcast Lurking About the Borders”: The Emergency Powers of the
Federal Government
Justice Brewer wrote the Supreme Court’s opinions in both Hodges and In
re Debs.134 None of the participants in Hodges, as far as I can tell, ever
mentioned Debs, yet no case raised such similar questions and answered them
so differently.
Debs concerned the validity of an injunction issued against Eugene V. Debs
and other leaders of a railroad strike that paralyzed the United States rail
system.135 Debs and the other defendants challenged the power of the federal
130
See Lochner, 198 U.S. at 57.
See id.
132
Hodges, 203 U.S. at 19.
133
The Court’s more capacious reading of the Thirteenth Amendment in the peonage
cases illustrates that this understanding was hardly inevitable. Risa Goluboff points out that
in these cases, in sustaining federal prosecutions of individuals who forced blacks into
involuntary servitude to pay off their debts, the Court rejected the claim that individuals
forced into peonage were “capable contractors.” See Risa L. Goluboff, The Thirteenth
Amendment and the Lost Origins of Civil Rights, 50 DUKE L.J. 1609, 1650 (2001); see also
KLARMAN, supra note 4, at 73-74 (arguing that the Court’s turn of the century peonage
cases reflected a “minimalist” interpretation of the Thirteenth Amendment and that to have
done less would have effectively permitted Southern nullification of the Amendment).
134
See Hodges, 203 U.S. at 14; In re Debs, 158 U.S. 564, 577 (1895).
135
See In re Debs, 158 U.S. at 566-67 (discussing how Debs and others used the strike to
131
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government to issue an injunction, as well as the contempt convictions that
resulted from their disobedience of the district court’s order.136
Justice Brewer’s opinion began by considering the nature of the federal
government’s power under the Commerce Clause to intervene in the railroad
strike, describing these powers expansively:
[W]ithin the limits of such enumeration it has all the attributes of
sovereignty, and, in the exercise of those enumerated powers, acts
directly upon the citizen, and not through the intermediate agency of the
State.
....
“No trace is to be found in the constitution of an intention to create a
dependence of the government of the Union on those of the States, for the
execution of the great powers assigned to it.”137
Given this plenary power, the wishes of the states were irrelevant. In fact,
Illinois Governor Altgeld had been markedly reluctant to put down the
strike.138 That “prosecutions for such offenses had in such a community would
be doomed in advance to failure” – that is, that the federal government could
not rely on a state to vindicate its interests – was all the more reason why the
federal government was justified in intervening directly.139 Justice Brewer
completed his syllogism with a rhetorical question: “[I]f a State with its
recognized powers of sovereignty is impotent to obstruct interstate commerce,
can it be that any mere voluntary association of individuals within the limits of
that State has a power which the State itself does not possess?”140 The answer,
clearly, was no. Neither the state nor the individual could interfere with the
federal government’s guarantee of those rights that lay within its control.
At an abstract level, Hodges presented nearly the same issue. The Contracts
Clause prohibits states from passing laws “impairing the Obligation of
Contracts.”141 Decisions from the Civil Rights Cases to Lochner had held that
the right to contract freely for the use of one’s labor was a fundamental right
that the states could not invade.142 But do private individuals who band
hold up the mails).
136
See id. at 575-77. For an extensive treatment of the Debs case, see FISS, supra note 7,
at 53-74, arguing that Brewer’s decision in Debs stemmed from his opinion that labor
strikes effected a conversion of the employer’s private property.
137 In re Debs, 158 U.S. at 578 (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,
424 (1819)).
138 See William E. Forbath, The Shaping of the American Labor Movement, 102 HARV.
L. REV. 1109, 1161 n.223 (1989) (noting that Governor Altgeld believed that the labor
movement was less dangerous than the corporations that opposed it).
139
In re Debs, 158 U.S. at 582.
140
Id. at 581.
141
See U.S. CONST. art. I, § 10, cl. 1.
142
See supra Part II.B.
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together as a mob interfere with this right any less? Unconsciously
strengthening this parallel, the Attorney General had argued in his brief that the
unwillingness of the Arkansas courts to guarantee the right to contract had
“utterly nullified” whatever laws Arkansas had guaranteeing such right, just as
the unwillingness of a state’s inhabitants to convict obstructers of the mails
nullified the federal government’s ability to protect interstate commerce in the
Debs case.143
The Solicitor General seemed to be suggesting that when the state had failed
as guarantor of fundamental rights it was necessary for the nation to step in to
guarantee them. To be sure, in the Civil Rights Cases, the Court had held that
the Fourteenth Amendment did not confer the authority to enact civil rights
statutes governing private conduct, but part of its analysis rested on the fact
that the law at issue applied even to “[s]tates which have the justest laws . . .
whose authorities are ever ready to enforce such laws.”144 But that surely was
not the case with respect to the workers in Hodges. Arkansas could hardly be
characterized as a state with the justest laws that it was ever ready to enforce.
What accounts, then, for the diametrically opposite positions Justice Brewer
and the Court took in Hodges and Debs? Precisely speaking, of course, the
cases were not identical. The nature of the federal government’s power vis-àvis the states was not quite the same. The Constitution granted Congress
affirmative power over commerce and the mails.145 It denied the states
affirmative power over contract,146 but it gave Congress no affirmative power
over the process of contracting. Therefore, what the federal government
sought to do in Hodges was not to further an enumerated interest of the federal
government, as was the case in Debs, but rather to cure a state’s dereliction of
duty. If the state’s police power to regulate contract was to mean anything, the
state must have the right to decide to what extent it would involve itself. Part
of the police power is the power not to police. In essence, just as the Dormant
Commerce Clause prevented the states from stepping in where Congress had
chosen not to tread, a “dormant contract clause” prevented the nation from
stepping in when a state had chosen to abstain.
The fact remains, however, that the Constitution prevents some forms of
interference with the right to contract. Thus, although Hodges can be
distinguished from Debs, the real difference lies in the facts, and not in the
formal constitutional provisions at issue.
From the Debs Court’s perspective, the railroad strike of 1894 was an
143
See Brief for the United States at 38, Hodges v. United States, 203 U.S. 1 (1906) (No.
14 of Oct. 1905 term).
144
109 U.S. 3, 14 (1883).
145
See U.S. CONST. art. I, § 8, cl. 3 (granting Congress the power to regulate commerce);
U.S. CONST art. I, § 8, cl. 7 (granting Congress the power to establish post offices).
146 See U.S. CONST. art I., § 10, cl. 1 (forbidding states from passing any law impairing
the obligation of contracts).
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emergency.147 It paralyzed the nation’s most important switchyard. If the
strike were not stopped, there was no telling what its effects would be.148
Regardless of Governor Altgeld’s reluctance to intervene, there was no reason
to believe that Illinois alone could control the problem. The strike was
quintessentially a national problem, not simply because interstate commerce or
the mail was affected, but because a national issue was at stake.
By contrast, the outcome in Hodges reflected the Court’s view that the
problems of eight black men were not as significant or compelling as those
surrounding eighty thousand strikers. Hence, the Court was reluctant to allow
the federal government to intervene. In rejecting the picture the Attorney
General had painted at the end of his oral argument of the black man as a
potentially dangerous outcast lurking at the outskirts of society,149 the Court
decided that no matter how catastrophic the events in Whitehall had been for
the victims, they did not threaten the foundations of the nation itself.
This perspective resulted from a number of subsidiary assumptions, none of
which the Court made explicit. First, white harassment and brutality against
blacks were almost inseparable incidents of Jim Crow. As we have seen, the
Whitehall incident was not all that unusual. Indeed, a number of U.S.
Attorneys in other districts wrote to the Department of Justice asking for
information about the progress of the case because they wished to bring similar
prosecutions in their districts.150 To muster the entire power of the federal
government to deal with the Whitehall situation would mean deciding that
federal power was to be used in the ordinary course of events. This would be a
drastic expansion of the federal government’s role, and would quite possibly
undercut the Hodges Court’s view of federalism. Action against a catastrophic
strike would not invoke so constant a federal presence.
Second, the Court viewed the problems of blacks as already solved. The
Civil War and the three Civil War Amendments had solved whatever problem
had existed, at least insofar as that problem was a matter of national concern.151
Indicative of this assumption is Hodges’ directive that blacks should “tak[e]
their chances” in the states where they lived.152 In 1928, Charles Warren was
to characterize the Court’s behavior at the turn of the century in these terms:
147
See In re Debs, 158 U.S. 564, 592 (1895).
Id. (describing the Court’s view that the case involved a critical question of national
welfare).
149
See Hodges v. United States. 203 U.S. 1, 14 (1906).
150
See, e.g., Letter from George Randolph, U.S. Attorney for the Western District of
Tennessee, to Philander C. Knox, Attorney General 1 (Feb. 23, 1906); Letter from J.W.
Ownby, U.S. Attorney, Eastern District of Texas, to Philander C. Knox, Attorney General 1
(Apr. 17, 1906).
151
For a brief discussion of the relationship between the Civil War and the Court’s
decision in Debs, see Eben Moglen, Holmes’s Legacy and the New Constitutional History,
108 HARV. L. REV. 2027, 2043-44 (1995) (book review), arguing that the Civil War made an
intense personal impression on all of the Justices who decided the Debs case.
152
See Hodges, 203 U.S. at 20.
148
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Viewed in historical perspective now, however, there can be no question
that the decisions in [the cases which restricted the scope of the civil War
Amendments] were most fortunate. They largely eliminated from
National politics the negro question which had so long embittered
congressional debates; they relegated the burden and the duty of
protecting the negro to the States, to whom they properly belonged; and
they served to restore confidence in the National Court in the Southern
States.153
Although we know that the Court was tragically wrong in viewing the
debased status of blacks as a local problem of little significance to the nation as
a whole, it was correct in recognizing that to address that problem the federal
government would have to radically transform its role.154
The Debs opinion contains a section whose contradiction of Hodges goes to
this point. In explaining how the commerce power has come to include
regulation of the railroads as well as the roads and navigable waters, Justice
Brewer wrote that “[c]onstitutional provisions do not change, but their
operation extends to new matters as the modes of business and the habits of
life of the people vary with each succeeding generation.”155 The Debs opinion
exhibits an understanding of the public interest as evolutionary and responsive
to economic and social change. Hodges, however, rejected this approach to the
Thirteenth Amendment. The Thirteenth Amendment “is as clear as language
can make it.”156 “The things denounced are slavery and involuntary
servitude,” as they were understood in 1895, and, despite Justice Brewster’s
resort to Webster’s Dictionary, not as they were being partially reinstated in
Jim Crow Arkansas.157
The Court refused to acknowledge that by the beginning of the twentieth
century, the South had developed more sophisticated means for imposing
involuntary servitude on blacks.158 If the promise of the Thirteenth
Amendment were to be fulfilled, then the federal government had to have the
power to attack the subjugation of those whom the Amendment had been
intended to protect, regardless of the guise in which that oppression appeared.
153
2 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY, 1836-1918, at
608 (2d ed. 1928).
154
For a discussion of that transformation, focusing on the role of the Thirteenth
Amendment, see Goluboff, supra note 133, at 1640-44, describing how government
attorneys used the Thirteenth Amendment to broaden the Department of Justice’s civil rights
practice in the 1940s.
155
See In re Debs, 158 U.S. 564, 591 (1895).
156
See Hodges, 203 U.S. at 17.
157
Id.
158
Indeed, even in one of the few cases where the Court did intervene to protect blacks
from peonage, the Court insisted in an extraordinarily disingenuous fashion that the case had
nothing to do with race or the South’s history of black slavery. See Bailey v. Alabama, 219
U.S. 219, 231 (1911).
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The Court’s rejection of an evolutionary perspective on the scope of the
Thirteenth Amendment is all the more troubling and unjustifiable in light of
the transformation which it wreaked on the Fourteenth Amendment in
Lochner. The interference with state autonomy engendered by Lochner’s
expansion of the Fourteenth Amendment was no less radical than that which
expansion of the Thirteenth Amendment would have brought.
CONCLUSION
In the end, Hodges confronted the Supreme Court with a choice between
commitment to the grand yet simple principle of personal freedom contained in
the Thirteenth Amendment and the central constitutional principle of a federal
government of limited powers. In order to proclaim adherence to both these
goals, the Court had to deny that there was any conflict between them. Justice
Brewer’s opinion thus ignored and distorted both past jurisprudential and
historical realities. He never mentioned the Civil Rights Cases, Lochner, or
Debs, which all bore directly on the meaning of the right to contract and the
proper role of the federal government. He misquoted the Slaughter-House
Cases. He pretended that the long history of black slavery in Arkansas had no
relationship to the plight of the eight black workers forced from their jobs. He
suggested that the black workers could look to an at best indifferent state
sovereign to protect their rights. Because the Court was unwilling to align the
law with the world in which it operated, the Court remade the world so as to
align it with an abstract notion of what the law should do.
Sixty-two years later, in Jones v. Alfred H. Mayer Co., the Supreme Court
finally overruled Hodges in a footnote.159 But it took a second Reconstruction
to overcome the view established in 1906 that the federal government should
not enforce racial justice.
I doubt that next year will see the kind of centennial retrospectives on
Hodges that Lochner has prompted this year. As Jack Balkin’s contribution to
this symposium explains, the question of which cases become part of the
canon, which become part of the anti-canon, and which become simply part of
the non-canon is a complex one.160 But the questions Hodges raised – about
congressional power under the Reconstruction Amendments – remain
extraordinarily important today. And in a time when several key pieces of the
Second Reconstruction161 face renewed attack, it is worth remembering how
the Court contributed to the demise of the First.
159
392 U.S. 409, 441 n.78 (1968).
See Jack M. Balkin, “Wrong the Day it Was Decided”: Lochner and Constitutional
Historicism, 85 B.U. L. REV. 677 (2005).
161 Not to mention some key provisions of the Lochner-repudiating New Deal, such as
Social Security.
160